Joe Tipaiza and James Hela Pora for themselves and on behalf of other Former Residents of the Finsch Road-Humande Road Settlement v James Yali, Governor, Madang Provence and Bunag Kiup, Chairman, Madang Provincial Government, Law and Order Committee and Anthony Wagambie, Commander, Task Force Goroka and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2008) N3472

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 10 September 2008
• Court: National Court
• Citation: (2008) N3472
• Docket Number: WS NO 1555 OF 2004
• Year: 2008
• Judgement Number: N3472

Full Title: WS NO 1555 OF 2004; Joe Tipaiza and James Hela Pora for themselves and on behalf of other Former Residents of the Finsch Road-Humande Road Settlement v James Yali, Governor, Madang Provence and Bunag Kiup, Chairman, Madang Provincial Government, Law and Order Committee and Anthony Wagambie, Commander, Task Force Goroka and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2008) N3472

National Court: Cannings J

Judgment Delivered: 10 September 2008

N3472

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1555 OF 2004

JOE TIPAIZA AND JAMES HELA PORA

FOR THEMSELVES AND ON BEHALF OF OTHER

FORMER RESIDENTS OF THE

FINSCH ROAD-HUMANDE ROAD SETTLEMENT

Plaintiffs

V

JAMES YALI,

GOVERNOR, MADANG PROVINCE

First Defendant

BUNAG KIUP,

CHAIRMAN, MADANG PROVINCIAL GOVERNMENT

LAW AND ORDER COMMITTEE

Second Defendant

ANTHONY WAGAMBIE,

COMMANDER, TASK FORCE GOROKA

Third Defendant

SAM INGUBA,

COMMISSIONER OF POLICE

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Madang: Cannings J

2008: 15, 16 May, 10 September

JUDGMENT

DAMAGES – breach of court order – unlawful destruction of properties by police and other agents of the State – squatter eviction exercise – plaintiffs claim general damages for loss and destruction of properties and damages for breach of constitutional rights.

A provincial governor enlisted the support of the Police Force to carry out a squatter eviction exercise, which entailed forced removal of people in a squatter settlement and destruction of their houses and personal properties. It was carried out contrary to an order of the National Court, which had stayed the exercise. The squatters sued the governor and a number of other parties, including the State, claiming damages for loss and destruction of their properties and breach of their constitutional rights. The State was found liable by entry of default judgment. A trial was held to assess damages.

Held:

(1) There was insufficient evidence in full support of each claim but, on the other hand, the plaintiffs proved that they incurred substantial losses and destruction of their properties. Each claim was discounted by 50% to arrive at an award of general damages.

(2) The claim for breach of constitutional rights was vague and inadequately particularised so no award of damages was made.

(3) Each claimant was awarded interest on the amount of general damages, calculated at the rate of 8% per annum from the date of the eviction exercise to the date of judgment.

(4) Total damages awarded was K1,997,631.14; total interest awarded was K926,900.84; the total judgment sum being K2,924,531.98.

Cases cited

The following cases are cited in the judgment:

Albert Baine v The State (1995) N1335

Jonathan Mangope Paraia v The State (1995) N1343

Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331

Peter Wanis v Fred Sikiot and The State (1995) N1350

Tipaiza v Yali (2006) N2971

Tipaiza v Yali (2006) N3178

Yange Lagan and Others v The State (1995) N1369

Yooken Paklin v The State (2001) N2212

TRIAL

This is a trial on assessment of damages.

Counsel

P Kunai & B Waipek, for the plaintiffs

No appearance for the defendants

10 September, 2008

1. CANNINGS J: This is an assessment of damages against the State, which has been found liable for the unlawful actions of the police in carrying out a squatter eviction exercise.

2. In early 2000 the Madang Provincial Government started planning the exercise for Madang town. In May 2000 a memorandum of agreement was signed by the provincial government and squatter representatives. This set out how the eviction issue was to be dealt with. A distinction was drawn between genuine settlers (those with jobs or businesses) and those considered non-genuine (people not gainfully employed).

3. In late 2002 a large squad of police was brought in from outside Madang and deployed to evict groups of people at different settlements around the town. The early phase of the eviction exercise was focussed on the Finsch Road-Humande Road settlement, in the Newtown area, occupied mainly by people from the Tari area of Southern Highlands Province. On Tuesday 19 November the provincial government gave them seven days notice to leave. They were not consulted on this, and that seemed to breach the May 2000 MOA.

4. The squatters engaged a lawyer and on Monday 25 November the National Court in Waigani made an order, putting the eviction exercise on hold. It was served immediately on the provincial government and the police.

5. However, by Tuesday 26 November 2002, the police had moved in to the Finsch Road-Humande Road settlement. They forcibly removed hundreds of people who had been living there. Then they set fire to their houses and personal properties.

6. In 2004, 220 former residents of the settlement, led by two of their big men, Joe Tipaiza and James Hela Pora, brought a representative action against the then provincial governor, James Yali, and a number of other parties including the State. They claimed damages for loss and destruction of their properties and breach of their constitutional rights. The State, represented by the Solicitor-General, failed to file a defence to the claim.

7. In February 2006 I refused a motion to enter default judgment and gave the State more time to file a defence. I was not satisfied that the plaintiffs’ original statement of claim disclosed a clear cause of action (Tipaiza v Yali (2006) N2971).

8. In August 2006 Davani J granted leave to the plaintiffs to amend their statement of claim (Tipaiza v Yali (2006) N3178). This made the cause of action much clearer. But still the State failed to file a defence.

9. In October 2007 the plaintiffs moved another motion for default judgment. This time I upheld it. I found the State vicariously liable, as fifth defendant, for the unlawful action of the police, with damages to be assessed. The police action was unlawful as it violated the National Court order of 25 November 2002. It was also in breach of the May 2000 MOA, which required the settlers to be consulted before being evicted.

10. The case against Mr Yali and Bunag Kiup, the then chairman of the provincial law and order committee, was discontinued in February 2008 (both of them had filed defences). The case against Anthony Wagambie, the senior officer of the Police Force in control of the eviction exercise, and the then Commissioner of Police, Sam Inguba, has not been pursued.

11. This judgment is confined to an assessment of damages against the State.

12. The plaintiffs are claiming:

· general damages for loss and destruction of property of almost K4 million; and

· damages for breach of constitutional rights, K220,000.00; being

· a total damages claim of about K4.2 million, plus interest.

THE EVIDENCE

13. Four of the plaintiffs gave oral evidence and 247 exhibits (mostly affidavits by the plaintiffs) were admitted into evidence.

Oral evidence

14. Konmai Kindi (plaintiff No 91) explained that after the eviction, a committee was established to coordinate the claim against the State and the other defendants. He was the committee secretary. He has been a Madang resident since 1997. Most of the houses that were destroyed were semi-permanent. But a number of them, owned by businessmen Joe Tari Tipaiza, John Yula and Andrew Yawale, were permanent dwellings.

15. The settlers did not think of engaging a valuer to assess their losses. Everything happened suddenly and the settlers were scattered.

16. Joe Tipaiza (plaintiff No 196) also came to Madang in 1997. He is a bricklayer by trade. He built three permanent houses at the settlement as well as a fun haus (entertainment centre) and trade store. He had a contract with Coca Cola, distributing soft drinks and other goods by mobile eskies throughout the town. He had been in negotiations with the local authorities to acquire legal title to the land. He was given the impression that it was only a matter of time before he could acquire legal title.

17. John Yula (plaintiff No 216) is another Tari man. He came to Madang in 1976. He runs a PMV business. He had a house, trade store and liquor store at the settlement. He owns a number of rental properties in town.

18. Andrew Yawale (plaintiff No 214) is also from Tari. He had lived in the settlement since 1989. He is an employee of British American Tobacco. He also runs a PMV business. He built a high covenant house in the settlement.

Exhibits

19. Each of the 220 plaintiffs swore an affidavit describing the property they had lost and estimating its total value.

20. Sandy Joe (plaintiff No 66) makes the lowest claim, K620.00, for:

Clothes, including school uniforms

School bag with stationery and exercise books

1 x BMX bicycle (new).

21. Joe Tipaiza (plaintiff No 196) makes the biggest claim, K804,180.00, for:

1 x High covenant double storey residential house with corrugated iron roofing and weather board walls

3 x Bedrooms fully furnished & 1 x living room upstairs

2 x Spacious room downstairs

1 x Permanent round community hall building with corrugated iron roofing and timber walls Fully furnished Floor area = 50m2

1 x Permanent double storey store and entertainment building with corrugated iron roofing and weather board walls Shop and kai bar on ground floor with full stock

2 x Snooker tables & video set on top floor

1 x Permanent poultry...